Audits and reports issued by New York State Comptroller Thomas P. DiNapoli during the week ending December 21, 2018

Audits and reports issued by New York StateComptroller Thomas P. DiNapoli during the week ending December 21, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Department of Health: Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (2017-S-36)
Auditors identified up to $8.7 million in improper payments for costs related to Medicare Part B deductibles and coinsurance between 2012 and 2017. Auditors found that Medicaid made: questionable payments totaling $5.3 million to providers who claimed excessive Part B coinsurance amounts; overpayments totaling $2.3 million to providers for the Part B coinsurance on services Medicaid did not cover; and overpayments totaling $1.1 million to providers for Part B deductibles that exceeded yearly limits.

Department of Health: Medicaid Overpayments for Medicare Advantage Plan Services (2017-S-46)
During the audit period, 2013 through 2017, Medicaid was the primary payer on 92,296 claims totaling almost $12.8 million for services typically covered by a recipient’s plan. Auditors sampled 266 such claims (totaling $220,661 in Medicaid payments) to determine the appropriateness of the payments. Auditors found that for 187 claims the provider either never billed the plan for the services, incorrectly indicated a plan payment of zero on its Medicaid claim or did not follow the plan’s billing guidelines. Medicaid paid $183,019 on these claims, while its actual obligation amounted to only $5,484. During the audit, certain providers acknowledged receiving overpayments and repaid Medicaid $25,300, leaving $152,235 to be recovered.

Department of Health: Improper Medicaid Payments for Recipients in Hospice Care (2017-S-76)
Auditors identified about $8 million in inappropriate Medicaid payments for services provided to hospice recipients, including: $2.9 million for services that were not allowed in combination with the daily hospice rate; $2.4 million for drugs, durable medical equipment, home care, and other services that are covered under the daily hospice rate; $2.6 million for services that should have been covered by Medicare or a Medicaid managed care organization; and $107,141 for hospice services while the patient was in the hospital.

Department of Labor (DOL): Protection of Child Performers (Follow-Up) (2018-F-24)
An initial audit found DOL had not created a sound and effective system of internal controls for the Child Performers Unit and did not have the necessary controls to monitor and enforce compliance with regulations designed to protect child performers’ earnings. Auditors also found that DOL’s electronic permit application system had significant data entry, maintenance, and functionality deficiencies that limited its effectiveness and reliability as a monitoring tool. In a follow-up, auditors found DOL officials have not made progress in addressing the issues identified in the initial report.

Department of Motor Vehicles (DMV): Registration and Enforcement of Automotive Service, Sales, and Salvage Facilities (Follow-Up) (2018-F-25)
State law outlines DMV’s responsibilities for administering the registration and licensing for certain types of automotive businesses, including registration of repair shops, dealers, dismantlers, and junk and salvage facilities and licensing of inspection stations. Where facilities are found to be in violation of laws, rules, or regulations, DMV must take necessary actions against them, which may include issuing penalties, suspending or revoking registrations/licenses to operate, or referring the operator or facility for criminal prosecution. An audit issued in August 2017 identified many locations where businesses could potentially be operating without a license. Auditors also identified delays in DMV’s process for handling consumer complaints. In a follow-up, auditors found DMV officials have made significant progress in correcting the problems identified in the initial report.

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Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Tinter v Board of Trustees of the Pound Ridge Lib. Dist., 2017 NY Slip Op 08385, Appellate Division, Second Department

In this appeal from a disciplinary determination following a Civil Service Law §75 disciplinary hearing that resulted in the termination of the employee [Petitioner], the Petitioner challenged, among other things, the authority of the hearing officer to conduct the hearing.

The Appellate Division said that the Board of Trustees of the Pound Ridge Library District's [Board] minutes reflecting a resolution to appoint the Hearing Officer and the letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board's president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against Petitioner and on "amendments or supplements to the charges as might thereafter be preferred ... sufficiently documented the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2), citing McKenzie v Board of Education, City School District of Albany, 100 AD3d 1096.

Petitioner also challenged certain members of the Board participating in the Board's review of the findings and recommendations of the Hearing Officer.

Citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, the Appellate Division stated that while individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges", the "[i]nvolvement in the disciplinary process does not automatically require recusal." The court opined that the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary."

Another issue raised by Petitioner was the Hearing Officer's involvement in another matter. The Appellate Division said that "[c]ontrary to the [Petitioner's] contention, the Hearing Officer's undisclosed participation in another matter involving the Board's counsel did not compel the Hearing Officer's disqualification."

With respect to Petitioner's claim that the Board's determination should be annulled because the Board made no independent review of the record, the Appellate Division found that the Board "had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum," and Petitioner "failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion."

Note:With respect to an appointing authority's review of the hearing record, in cases in which a board is the appointing authority and is voting to accept a hearing officer’s finding of fact, each member of the board must make an independent review of the record. This means a copy of the transcript must be made available to each member of the board who votes. The appointing authority, however, is not required to read every page of the transcript taken at a disciplinary hearing. In McKinney v Bennett, 31 AD3d 860, the Appellate Division held that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted, citing Matter of Taub v Pirnie, 3 NY2d 188. In Stanton v Board of Trustees, 157 AD2d 712, the court commented that Stanton failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08385.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Wilson v New York City Bd. of Educ., 2018 NY Slip Op 08534, Appellate Division, Second Department

Judith Wilson, an elementary school principal, allegedly was injured when a 12-year-old student grabbed a cell phone from Wilson's hand. Wilson commenced this action to recover damages for personal injuries against the New York City Board of Education and the City of New York, [BOE] alleging that a school safety officer failed to adequately protect her. The critical issue to be determined in this action was the liability of the BOE for the injury suffered by Wilson. However, Supreme Court granted BOE's motion for summary judgment and Wilson appealed.

Sustaining the lower court ruling, the Appellate Division explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge in the absence of a special duty to the person injured. The court then indicated that there are three ways in which a special relationship with a municipal defendant can be formed with teachers, administrators, or other adults on or off school premises: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons;

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" 

The Appellate Division further explained that with respect to a special relationship based upon a duty voluntarily assumed by the municipality, such a relationship requires proof of the following four elements:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the municipality's agents that inaction could lead to harm;

(3) some form of direct contact between the municipality's agents and the injured party; and

(4) that party's justifiable reliance on the municipality's affirmative undertaking.

In addition, said the court, the "assurance" by the municipal defendant must be definite enough to generate justifiable reliance by [Wilson]" citing Dinardo v City of New York, 13 NY3d 872.

Ruling that the Board of Education established, prima facie, that it did not owe Wilson a special duty and that Wilson failed to raise a triable issue of fact, the Appellate Division said it agreed with the Supreme Court's determination granting BOE's motion for summary judgment dismissing Wilson's complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08534.htm

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

Source: NYS Assembly Press Office Release

Speaker Carl E. Heastie

Majority Leader Crystal D. Peoples-Stokes

Chair, Ways and Means Helene E. Weinstein

Deputy Speaker Catherine Nolan

Assistant Speaker Félix W. Ortiz

Speaker Pro Tempore Jeffrion L. Aubry

Chair, Committee on Committees Vivian E. Cook

Assistant Speaker Pro Tempore N. Nick Perry

Deputy Majority Leader Phil Ramos

Assistant Majority Leader David F. Gantt

Majority Whip William Colton

Deputy Majority Whip José Rivera

Assistant Majority Whip Michael Miller

Chair, Majority Conference Steven Otis

Vice Chair, Majority Conference Erik M. Dilan

Secretary, Majority Conference Rebecca A. Seawright

Chair, Majority Program Carmen E. Arroyo

Chair, Majority Steering Barbara Lifton

Vice Chair, Majority Steering John T. McDonald III

Chair, House Operations Ron Kim

Chair, Puerto Rican/Hispanic Task Force Maritza Davila

STANDING COMMITTEES

Chair, Aging Harry B. Bronson

Chair, Agriculture Donna A. Lupardo

Chair, Alcoholism & Drug Abuse Linda B. Rosenthal

Chair, Banks Kenneth Zebrowski

Chair, Children & Families Ellen Jaffee

Chair, Cities Edward C. Braunstein

Chair, Codes Joseph R. Lentol

Chair, Consumer Affairs Michael G. DenDekker

Chair, Corporations, Authorities & Commissions Amy Paulin

Chair, Correction David I. Weprin

Chair, Economic Development Robin Schimminger

Chair, Education Michael Benedetto

Chair, Election Law Charles D. Lavine

Chair, Energy Michael Cusick

Chair, Environmental Conservation Steve Englebright

Chair, Ethics & Guidance Aravella Simotas

Chair, Governmental Employees Peter J. Abbate, Jr.

Chair, Governmental Operations Michele R. Titus

Chair, Health Richard N. Gottfried

Chair, Higher Education Deborah J. Glick

Chair, Housing Steven Cymbrowitz

Chair, Insurance Kevin A. Cahill

Chair, Judiciary Jeffrey Dinowitz

Chair, Labor Marcos A. Crespo

Chair, Libraries & Education Technology Sean Ryan

Chair, Local Governments Fred W. Thiele, Jr.

Chair, Mental Health Aileen M. Gunther

Chair, Oversight, Analysis & Investigations Thomas J. Abinanti

Chair, Racing & Wagering J. Gary Pretlow

Chair, Real Property Taxation Sandy Galef

Chair, Small Business Al Stirpe

Chair, Social Services Andrew Hevesi

Chair, Tourism Daniel J. O'Donnell

Chair, Transportation William B. Magnarelli

Chair, Veterans Affairs Didi Barrett

TASK FORCES & LEGISLATIVE COMMISSIONS

Chair, Administrative Regulations Review Dan Quart

Chair, Farm, Food & Nutrition Michaelle C. Solages

Chair, Government Administration David Buchwald

Chair, New Americans Victor M. Pichardo

Chair, People with Disabilities Phil Steck

Chair, Reapportionment Robert J. Rodriguez

Chair, Rural Resources Angelo Santabarbara

Chair, Science & Technology Patricia Fahy

Chair, Skills Development & Career Education Walter T. Mosley

Chair, State-Federal Relations Nily Rozic

Chair, Women's Issues Latrice Walker

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Smith v DiNapoli, 2018 NY Slip Op 08606, Appellate Division, Third Department

A one-time, 30-day overtime pay earned in the last year of a member's employment is excluded from the member's final average salary calculation as such payments are deemed "termination pay" within the meaning of  §302(9)(d) of the Retirement and Social Security Law [RSSL].

A member [Retiree] of the New York State and Local Retirement System [ERS] retired in August 1998 and commenced receiving his retirement pension. In 2012, ERS notified Retiree that it had reviewed the calculation of his final average salary used to compute his retirement benefits and determined that his one-time, 30-day overtime pay earned in the last year of his employment should have been excluded from the final average salary as mandated by §302(9)(d). Retiree challenge the determination but the Comptroller adopted a Hearing Officer decision that the 30-day overtime payment was properly excluded from Retiree's final average salary as it constituted termination pay and compensation in anticipation of retirement and, as such, was not includable pursuant to RSSL §431(2) and (3). Retiree then appealed the Comptroller's decision.

Citing Matter of Chichester v DiNapoli, 108 AD3d. The Appellate Division confirmed the Comptroller's decision 924, the court explained that "[T]he Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld — even if other evidence in the record could support a contrary result."

As relevant here, Retiree's "final average salary" was defined as "the regular compensation earned from [the] employer during the twelve months of actual service immediately preceding the date of [retiree's] retirement," with certain exclusions permitted pursuant to RSSL §302[9][d]. This, said the Appellate Division was "In order to avoid the artificial inflation of that figure." In computing retirement benefits the base salary excludes, as pertinent here, "any form of termination pay" and "any additional compensation paid in anticipation of retirement."

Significantly, observed the court, "the determination of what constitutes termination pay or compensation in anticipation of retirement requires that we 'look to the substance of the transaction and not to what the parties may label it.'" As substantial evidence supported the Comptroller's determination that the payment for 30 days of overtime in retiree's final year of service is excludable in arriving at his final average salary, as it constituted a form of termination pay and compensation in anticipation of retirement.

In this instance the relevant employment contract provided that Retiree and certain other employees were required to work overtime without additional compensation until their final year of service, when they could accumulate and were paid for overtime actually earned upon their retirement, such overtime pay "restricted to one-time, one[-]year maximum of 30 days." Retiree conceded that this was taken in the final year to boost his retirement benefits.

Under these circumstances, the Appellate Division held that the Comptroller rationally excluded such sums from retiree's final average salary and corresponding retirement benefit calculation.

Retiree had contended that General Municipal Law §90 provides a basis upon which to permit the inclusion of overtime pay in his final average salary for purposes of calculating his retirement benefits. The court, noting that §90 permits the governing board of a political subdivision of the state to adopt an ordinance, local law, resolution or rule providing for the payment of overtime compensation to public officers and employees, and mandates that such payments be considered as salary or compensation for "the purposes of any pension or retirement system," this statute, which is strictly construed, requires that, for overtime payments to be considered as salary, they must be paid pursuant to "an overtime plan [adopted by the governing board] setting forth in detail the terms, conditions and remuneration for such employment."

As the overtime payment to Retiree was not made pursuant to such an ordinance or resolution adopted by the City Council., his reliance on a 1994 adopted by the City Council was "unavailing." That resolution indicated that the City Council had entered into a memorandum agreement with the police union regarding a labor relations contract, although neither document was provided. Further, observed the court, the resolution "merely authorized the mayor to enter into a labor agreement" with certain employees in the police department but there is no indication that the attached labor relations agreement entered into with Retiree and other nonunion employees — which restricted overtime to a "one-time, one[-]year maximum of 30 days" of overtime and contained no details — was ever approved by the City Council. Indeed, said the Appellate Division, that agreement expressly stated that it was "subject to approval by the City Council."

Finally, the Appellate Division rejected Retiree's argument that the Comptroller is estopped* from correcting the error due to the passage of time. Rather, said the court, "[T]he Comptroller is statutorily required to correct errors in the retirement benefits records and adjust payments accordingly to ensure the integrity of the public retirement system,"** citing Matter of Mowry v DiNapoli, 111 AD3d 1117 and RSSL §111 [c]). Indeed, said the court, noting the decision in Matter of Schwartfigure v Hartnett, 83 NY2d 296, the Comptroller's duty to correct errors is ongoing, and continues even after benefits are awarded and includes the right to recoup overpayments.

* As a general rule, estoppel may not be invoked against the state or its agencies absent a "showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon."

** It is assumed that this duty extends to correcting errors that resulted in a retiree receiving less that the amount to which he or she was entitled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08606.htm